ORDER R.K. Batta, J.
1. The point involved in both these matters is same and as such the matters are being disposed of by common judgment. The applicants claim benefit of Circular dated 7th May, 1976 issued by the Government of Maharashtra.
2. In Criminal Application No.1598 of 1997, the applicnnt has been prosecuted for offence under Section 409, I.P.C. It is alleged that the applicant had committed criminal breach of trust in respect of a sum of Rs. 3,461.19 during 19-1-1983 to 17-2-1983. On 17-2-1983, the misappropriation was noticed by the Revenue Inspector and the applicant deposited the misappropriated amount on 21-2-1983 and 22-2-1983. He filed an application before the Magistrate seeking directions to be issued to the State to withdraw the prosecution or in the alternative to hold that the prosecution stands withdrawn fictionally. This application was dismissed by the Chief Judicial Magistrate, Amravati vide order dated 15-4-1993. The said order was challenged by the applicant before the Sessions Court and the learned Additional Sessions Judge, Amravati vide order dated 15tA July, 1997, dismissed the revision.
3. In Criminal Application No.1845 of 2000, the applicant was charge-sheeted for offence under Sections 409, 420 read with Section 34 of I.P.C. for defalcation of an amount of Rs.1,39,203.37. This defalcation was detected by the auditor on 30-7-1987 and the applicants deposited the said amount of Rs.1,39,203.37 and 4-8-1987. The applicants filed an application relying upon the circular of the State of Maharashtra for discharge/ acquittal. The Magistrate rejected this application. Revision was filed against the said order by the applicants and the revision was dismissed by learned Additional Sessions Judge, Khamgaon by order dated 13th October, 2000. This matter was ordered to be taken along with Criminal Application No.1598 of 1997.
4. Learned Advocate Shri J.T. Gilda argued on behalf of the applicant in Criminal Application No.1598 of 1997. Learned Advocate Mrs. Sirpurkar argued on behalf of the applicants in Criminal Application No.1845 of 2000 and learned A.P.P. argued on behalf of the State.
5. Learned Advocate Shri Gilda after placing reliance on Dagdu Sharnrao Deshmukh v. State of Maharashtra reported in 1982 Mah LJ 559 : (1982 Cri LJ 1866); Vasant Purushottam Deshpande v. State of Maharashtra in Criminal Revision Application No.156 of 1987; Natha Shankar Kutharwade v. State of Maharashtra reported in 1992 Mah LJ 580; and Asaram Kishanrao Bhanware v. State of Maharashtra reported in 2000 (4) Mah LJ 695 urged before me that the circular in question is of general application and in view of the aforesaid judgments the proceedings be quashed. Learned Advocate Mrs. Sirpurkar adopted the submissions made by the Advocate Shri Gilda.
6. On the other hand, learned A.P.P. urged before me that the P.P. has not applied for withdrawal and that directions cannot be issued to the prosecution agency to withdraw the matter. His further contention is that the circular in question is not of general application but it only applies to village panchayat and the applicants in both the cases are not covered by the circular in question. It is also urged that the circular has no statutory force. Learned APP has placed reliance on judgment of Sheonandan Paswan v. State of Bihar and Abdul Karim v. State of Karnataka .
7. The applicant in Criminal Application No.1598 of 1997 is a Patwari and working in the Revenue Department of Government of Maharashtra. The applicant In Criminal Application No.1845 of 2000 is working in M.S.E.B. which is controlled by the Government. However, according to the learned A.P.P., the said applicant is not a Government employee and it is further pointed out. by the learned A.P.P. that the misappropriation was in respect of a Co-operative Credit Society run for the employees of the Maharashtra State Electricity Board and the said amount cannot be said to be Government money as a result of which benefit of the circular cannot be given to the applicants.
8. The circular in question has been reproduced in Natha Shankar Kutharwade v. State of Maharashtra (1992 Mah LJ 580) (supra) and it will be appropriate to reproduce the said circular which reads as under:-
Village Panchayats Misappropriation of funds of -
Procedure for dealing with the cases of..
GOVERNMENT OF MAHARASHTRA Rural Development Department Circular No. VPC 1575/3275/XX1II Sachivalaya, Bombay-400 032, dated the 6th May, 1976 CIRCULAR Government has, from time to time, issued various orders for dealing with the cases of misappropriation of the village funds and the procedure for dealing with such cases was last revised under Government Resolution, Rural Development Department No. VPF 1570/21116/E dated 3rd November, 1970 read with Government Letter No. VPF 1572/31064/E dated 15th November, 1978 and Government Letters No. VPF 1574/ C-2161/E dated 11th July, 1975 and No. VPF 1575/3115/XXIV, dated 10th October, 1975. The procedure as it exists today does not make any distinction between the cases involving amounts of more than Rs. 200/- or those involving lesser amounts as in the case of Talathis but there has been a common procedure for dealing with all the cases. Further it has been clarified that even where the amounts misappropriated have either been received or made good by the delinquents the police investigation should not be stopped and where complaints have not been lodged and the misappropriated amounts made good, even then the complaints should be lodged subsequently.
2. It has now come to the notice of Government that in cases of misappropriation of very small amounts and offences of a technical nature the delinquents are being prosecuted by the Chief Executive Officer of the Zilla Parishads and proposals have been made to Government that prosecution should not be launched in such cases. Government has, therefore, again examined this aspect of the matter and is pleased to direct in modifications of the previous orders as follows :
a) Where the amounts misappropriated have been fully recovered or paid by the delinquents within one month from the date of misappropriation being noticed, no prosecution should be launched an cases of this category already filed in the Court should be withdrawn. However, this will not preclude the action against the Sarpanch/ Upasarpanch or a member under Section 39 of the Bombay Village Panchayats Act, 1958.
b) Where the offences involved in the misappropriation cases are merely technical in nature involving no financial or material implication, no prosecution need be launched.
c) Where the amount involved does not exceed Rs. 200/-, no prosecution should be launched against the delinquent Gram Sevaks subject to the condition that the amount misappropriated is recovered within one month from the date of misappropriation being noticed provided that the Gram Sevak concerned is involved in such instance only for the first time. The repeated irregularities of this kind by the same Gram Sevak should be dealt with appropriately.
By order and in the name of the Governor of Maharashtra.
Sd/-
I. D. Jadhav, Dy. Secretary to Government.
9. A bare reading of the circular would go to show that the circular applies only to the employees of the village Panchayat and it is not of general application. The circular provides for misappropriation of the village funds and procedure for dealing with the cases of village Panchayat, the circular is issued by the Rural Development and not by the General Administration Department. The preamble to the circular shows that the Government was concerned about the cases of misappropriation of village funds as also misappropriation of very small amounts and offences of technical nature.
10. In Natha Shankar Kutharwade v. State of Maharashtra (1992 Mah LJ 580) (supra), a case for misappropriation for Rs.45,269.05 ps. had been filed against Talathi. Relying upon the judgment of this Court in Dagdu Shamrao Deshmukh v. State of Maharashtra (1982 Cri LJ 1866) (supra), it was argued that it was bounden duty of the prosecution to have withdrawn the prosecution in terms of the circular and as such prosecution should be quashed. It was urged by the learned Advocate for the applicant therein that in para 2 of the said circular although there is indirect reference to the case of misappropriation of small amounts and the offences of technical nature still that cannot limit the scope of the circular. The learned single Judge found that the argument may sound very plausible but if the circular is interpreted in its correct perspective, the said argument would appear to be hollow and devoid of substance. It was held that the circular did not govern the misappropriation of large amounts and the cases of well designed misappropriations. The application was, therefore, dismissed. It is pertinent to note that it was pointed out by the learned single Judge that if this circular is to be utilized for misappropriation of large amounts per se this circular would be struck down under Article 14 of the Constitution and the Government can well be said to have been aware of this contitutional infirmity and, therefore, could not have envisaged the delinquents will be relieved of misappropriation or defalcations of large amounts by following ingenious methods.
11. Learned Advocates for the applicants have placed heavy reliance on the judgment of this Court in Dagdu Shamrao Deshmukh v. State of Maharashtra (1982 Cri LJ 1866) (supra) which judgment was rendered on the concession by the learned A.P.P. In that case it was not disputed that the circular was meant for general application and that the circular reflects the general Government policy and further that the Circular governs all those who are intended to be governed by the same, uniformly. The learned single Judge, however, noted that at least prima facie it did appear to him that such a policy decision is not warranted by our legal system and he expressed his own doubts as to whether the said para 2 of the Circular can be said to be based on any constitutional provision or can be said to be justified in spite of constitutional injunction contained in Article 14 of the Constitution in particular and in spite of the scheme of the Constitution as a whole in general. However, since neither the constitutional validity of the circular was in challenge nor the single Judge thought it fit to suo motu exercise the power, the learned single Judge proceeded on the assumption that the circular was valid. On the basis of the concession by the A.P.P., the learned single Judge stated that it is conceded that the circular dated 6th May, 1976 was intended to be of uniform application and that it was incumbent upon the prosecution to make an application to the Court under Section 321 of the Criminal Procedure Code for withdrawal of the prosecution.
12. Before me, learned A.P.P. has argued that the circular, in question, is not of general application and its application is restricted only to the employees working in the Rural Development Department. There is considerable merits in this submission and in my opinion, the said Circular, in question is not of general application and it applies only to the employees working in the Rural Development Department. The applicant in Criminal Application No.1598 of 1997 is working as Patwari in the Revenue Department and the applicant in Criminal Application No.1845 of 2000 is working in M.S.E.B. Hence apparently the Circular in question does not apply to them. Besides this, the learned single Judge has held in Natha Shankar Kutharwade v. State of Maharashtra (1992 Mah LJ 580) (supra) that the Circular does not govern the cases of misappropriation of large amounts and the cases of well designed misappropriations and I have my respectful concurrence with that view.
13. The judgment in Vasant Purushottam Deshpande v. State of Maharashtra (supra) also proceeds on the basis that the Government of Maharashtra issued a general Circular. I have already pointed out that the Circular, in question is not of universal application and as such the said ruling which is based upon the judgment in 1982 Dagdu Shamrao Deshrnukh v. State of Maharashtra, 1982 Cri LJ 1866 (supra) does not in any manner help the applicants.
14. Besides this, the proposition that it is incumbent upon the Public Prosecutor to make an application to the Court under Section 321 of the Criminal procedure Code for withdrawal of the prosecution cannot be said to be good law in the light of the judgments of the Apex Court in Sheonandan Paswan v. State of Bihar (1983 Cri LJ 348) (supra) and Abdul Karim v. State of Karnataka (2001 Cri LJ 148) (supra). In Sheonandan Paswan v. State of Bihar (supra), it is held that withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him and the authority with whom the discretion is vested must genuinely address itself to the matter before it, must not act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. It is further pointed out therein that Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The withdrawal from prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from prosecution is his. The Government may suggest to Public Prosecutor that a particular case may not be proceeded with but nobody can compel him to do so. There is no doubt that the learned A.P.P. has to take instructions from the Government. However, in case of withdrawal even when there are instructions of the Government there is duty cast on the Public Prosecutor to apply his mind independently and come to his own conclusion. If he does not apply his mind and bows down to the dictates of the Government, it may not be a proper way of exercising statutory discretion vested in him. In Abdul Karim v. State of Karnataka (2001 Cri LJ 148) (supra) also, it is laid down that Public Prosecutor must independently apply his mind to all relevant material and reach his own satisfaction regarding need for withdrawal from prosecution in good faith. He cannot act merely on instructions of the Government but he must independently apply his mind. In these circumstances, I am of the opinion no directions can be given to Public Prosecutor to file an application for withdrawal nor the proceedings can be quashed as prayed by the applicants.
15. The ruling of learned single Judge in Asaram Kishanrao Bhaware v. State of Maharashtra (2000 (4) Mah LJ 695) (supra) does not in any manner help the applicants. In that case also, the applicant who was convicted had relied upon the Government decision and had stated that in view of the said Government decision, the Public Prosecutor ought to have filed an application under Section 321 of the Criminal Procedure Code. In this connection, relying upon Sheonandan Paswan v. State of Bihar (1983 Cri LJ 348) (supra), it was stated that the Public Prosecutor cannot file an application of withdrawal of the case on his own without instructions from the Government.
16. For the aforesaid reasons, I do not find any merit in the criminal applications. Accordingly, both the criminal applications are hereby rejected.